United States District Court, S.D. Mississippi, Southern Division
MICHAEL H. MARCELLE SR. PLAINTIFF
PICAYUNE URGENT CARE and WALGREENS DRUG STORE DEFENDANTS
MEMORANDUM OPINION AND ORDER DISMISSING ACTION FOR
LACK OF SUBJECT-MATTER JURISDICTION
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE
THE COURT are the  Motion for Judgment on the Pleadings
filed by Defendant Walgreens Co., which states that it was
incorrectly identified as Walgreens Drug Store, and the 
Motion to Dismiss for Lack of Subject Matter Jurisdiction
filed by Defendant Picayune Urgent Care. Plaintiff Marcelle,
who is proceeding pro se, did not respond to the
Motions, and the time for doing so has now
expired. See, e.g., Fox v. United
States, No. 3:10cv126-DPJ-FKB, 2013 WL 1310558, at *3
(S.D.Miss. Mar. 28, 2013) (“[A]lthough pro se
litigants are afforded substantial leeway, they too must
comply with court orders and deadlines.”) (citing
Fujita v. United States, 416 F. App'x 400,
402-03 (5th Cir. 2011)); Ray v. Edgar, 115 F.
App'x 293, 293 (5th Cir. 2004) (“The local rules of
the district court provide sufficient notice for a pro
se litigant such as [Plaintiff].”). Having
considered the Motions and the applicable law, the Court is
of the opinion that it lacks subject- matter jurisdiction
over this action. Accordingly, this action must be dismissed
pursuant to Federal Rule of Civil Procedure 12.
states that he was prescribed Pravastatin by Picayune Urgent
Care in November 2014 but was “not told of side
effects.” (Am. Compl. 4, ECF No. 18). He further states
that “[o]n November 17, 2014 [he] started taking
Pravastatin [he] received from Walgreens Drugs and not told
of side effects.” (Id.). He “stopped
taking Pravastatin after hearing of the side effects on
February 16, 2015[, ] 61 pills later.” (Id.).
He now alleges that he has “been very ill for the last
2 years due to Pravastatin side effects which I was not told
of[, ]” and requests an award of $250, 000 in damages
for his pain and suffering. (See id.).
only possible basis for subject-matter jurisdiction in this
action is federal question jurisdiction, as Marcelle does not
allege that Defendants are citizens of different states.
Liberally construing Marcelle's Amended Complaint, the
Court has determined that Marcelle is attempting to allege
claims against Defendants pursuant to the Federal Food, Drug
and Cosmetics Act (FDCA), 21 U.S.C. §§ 301, et
seq. It also appears to the Court that Marcelle is
attempting to allege claims pursuant to Mississippi state law
the federal government and in some instances a state may sue
under the FDCA. See 21 U.S.C. § 337.
“Every federal court that has addressed the issue has
held that the FDCA does not create a private right of action
to enforce or restrain violations of its provisions and
accompanying regulations.” Eli Lilly & Co. v.
Roussel Corp., 23 F.Supp.2d 460, 476 (D.N.J. 1998).
Because Marcelle, as an individual, cannot sue under the
FDCA, the Court lacks subject-matter jurisdiction over any
purported FDCA claim against Defendants. See, e.g.,
Murungi v. Touro Infirmary, No. 11-1823, 2012 WL
1014811, at *3 (E.D. La. Mar. 21, 2012); Logan v. Burger
King Rest., No. 610-141-HFF-WMC, 2010 WL 610741, at *1
(D.S.C. Feb. 18, 2010).
then to Marcelle's purported state law claims,
“[i]f a district court has original jurisdiction over a
civil action, the court ‘shall have supplemental
jurisdiction over all other claims that are so related'
to that civil action that ‘they form part of the same
case or controversy[.]'” French Gourmet, Inc.
v. FFE Transp. Servs., Inc., No. H-10-3503, 2011 WL
1230212, at *3 (S.D. Tex. Mar. 30, 2011) (quoting 28 U.S.C.
§ 1367(a)). “Thus, for a court to exercise
supplemental jurisdiction it must first have original
jurisdiction with respect to at least one of the . . .
claims.” Id. Because the FDCA does not confer
original jurisdiction in this action, “the court also
lacks supplemental jurisdiction” over any state law
claims. See id.; see also, e.g., Hix v.
County, No. W:13-CV-136, 2013 WL 12130311, at *1 (W.D.
Tex. Aug. 16, 2013) (“Because the Court is persuaded it
does not have original jurisdiction over any of
Plaintiff's claims, it cannot exercise supplemental
jurisdiction over Plaintiff's remaining state-law
claims.”). This action must be dismissed. See
Fed. R. Civ. P. 12(h)(3) (“If the court determines at
any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”); see also Filer v.
Donley, 690 F.3d 643, 646 (5th Cir. 2012) (“it is
the duty of a federal court first to decide, sua sponte if
necessary, whether it has jurisdiction before the merits of
the case can be addressed”).
THEREFORE ORDERED AND ADJUDGED that the  Motion for
Judgment on the Pleadings filed by Defendant Walgreens and
the  Motion to Dismiss for Lack of Subject Matter
Jurisdiction filed by Defendant Picayune Urgent Care are
ORDERED AND ADJUDGED.
 Plaintiff Marcelle participated in a
telephonic case management conference on May 22, 2017, in
which counsel for Defendants Walgreens and Picayune Urgent
Care informed the Court that they would each be filing
dismissal motions. Further, both defense counsel certified
that they mailed copies ...